In Praise of Slow Learners

There’s this much to be said in praise of Jonathan Turley, professor of “public interest law” at George Washington University Law School, and frequent bobblehead on cable TV shows: at least he isn’t a supercilious smug-mugger like Jeffrey Toobin. In addition, unlike Toobin, Turley often gets things right.

But come on man, you’re only just discovering nowthat the federal administrative bureaucracy—the “fourth branch of government”—has become problematic? From Turley’s article today in the Washington Post:

The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is not just bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency. . .

This exponential growth has led to increasing power and independence for agencies. The shift of authority has been staggering. The fourth branch now has a larger practical impact on the lives of citizens than all the other branches combined.

The rise of the fourth branch has been at the expense of Congress’s lawmaking authority. In fact, the vast majority of “laws” governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats. One study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

This rulemaking comes with little accountability. It’s often impossible to know, absent a major scandal, whom to blame for rules that are abusive or nonsensical. Of course, agencies owe their creation and underlying legal authority to Congress, and Congress holds the purse strings. But Capitol Hill’s relatively small staff is incapable of exerting oversight on more than a small percentage of agency actions. And the threat of cutting funds is a blunt instrument to control a massive administrative state — like running a locomotive with an on/off switch.

From here Turley goes off the rails a bit, by failing to understand that Congress actually wants it this way.

But more to the point, it never ceases to amaze me when “mainstream” potentates like Turley come to understand what conservatives have been saying loudly for thirty or forty years, but somehow pose as though they’ve discovered something new or are offering brilliant new insights.